Upon the commission of the Chairman of the Constitutional Court of Ukraine Oleksandr Tupytskyi,
we publish the text of an address forwarded to the Chairman of the Verkhovna Rada of Ukraine
CHAIRMAN
OF THE CONSTITUTIONAL COURT OF UKRAINE
14, Zhylianska str., Kyiv 01033
To the Chairman
of the Verkhovna Rada of Ukraine
D.O. Razumkov
Dear Mr. Chairman,
I am compelled to address an open letter to the Verkhovna Rada of Ukraine regarding the situation that has arisen in view of outright illegal interference in the activities of the Constitutional Court of Ukraine, blocking its work, unlawful influence on judges of the Constitutional Court of Ukraine, as well as obstruction of their duties.
On December 29, 2020, the President of Ukraine V. Zelenskyi issued Decree №607/2020 “On removal of a judge of the Constitutional Court of Ukraine from office” (hereinafter referred to as “the Decree”), which provides for “removal of Oleksandr Tupytskyi from office of judge of the Constitutional Court of Ukraine for the period of two months”.
Without going into the substantive legal assessment of the Decree, I note that the Constitution of Ukraine, which exhaustively defines the powers of the head of state, does not give the President of Ukraine the right to remove judges of the Constitutional Court of Ukraine. Neither the Constitution of Ukraine nor the Law of Ukraine “On the Constitutional Court of Ukraine”, which determine the status of a judge of the Constitutional Court of Ukraine, provide for the institute of “removal of a judge of the Constitutional Court of Ukraine from office”.
The Constitution of Ukraine (Articles 148, 1491) and the Law of Ukraine “On the Constitutional Court of Ukraine” (Articles 17, 18, 20, 21) provide for the grounds and procedure for acquiring the status and powers of a judge of the Constitutional Court of Ukraine and terminating (loss of) them. This also applies to the Chairman of the Constitutional Court of Ukraine (Article 148 of the Constitution of Ukraine, Article 33 of the Law of Ukraine “On the Constitutional Court of Ukraine”).
The Decree of the President of Ukraine is not an act as a result of which a person may lose the status of a judge and the Chairman of the Constitutional Court of Ukraine. Therefore, in connection with the issuance of the Decree, I have not lost the status of a judge of the Constitutional Court of Ukraine and continue to hold the administrative position of the Chairman of the Constitutional Court of Ukraine.
The Constitution of Ukraine (Article 149) and the Law of Ukraine “On the Constitutional Court of Ukraine” (Article 24) establish guarantees of the independence and inviolability of a judge of the Constitutional Court of Ukraine, prohibiting influence on him in any way.
However, all these constitutional and legislative provisions were brutally violated by employees of the Administration of State Guard of Ukraine (hereinafter referred to as “UDO”), who interfered with the official activities of judges of the Constitutional Court of Ukraine, the Chairman of the Constitutional Court of Ukraine and blocked the work of the Constitutional Court of Ukraine.
Thus, on January 19, 2020, UDO employees committed illegal actions to prevent me as the Chairman of the Constitutional Court of Ukraine and other judges of the Constitutional Court of Ukraine (in particular, judges of the Constitutional Court of Ukraine O.V. Kasminin, V.R. Moisyk) from entering the administrative building of the Constitutional Court of Ukraine. On the same day, journalists of many mass media who were accredited to participate in the relevant event were not allowed to enter the administrative building of the Constitutional Court of Ukraine.
All entrances to the administrative building of the Constitutional Court of Ukraine and entrances to the territory were blocked by unknown persons in camouflage uniforms. These persons were on the territory and in the premises of the administrative building of the Constitutional Court of Ukraine together with the UDO employees, who on a permanent basis guard the administrative building of the Constitutional Court of Ukraine. It was not possible to find out who these people were, as their camouflage uniforms did not have identification and they flatly refused to introduce themselves. On January 19-21, 2021, there were approximately 70 such persons on the territory and in the administrative building of the Constitutional Court of Ukraine.
According to the available information, a special unit of the UDO – “Bulat”, which is used to neutralise especially dangerous criminals and conduct anti-terrorist special operations, was involved in blocking the work of the Constitutional Court of Ukraine and obstructing the performance of their duties by judges of the Constitutional Court of Ukraine and its Chairman.
On January 19, 20, and 21, 2021, officers of the UDO prevented the entry of official cars of individual judges of the Constitutional Court of Ukraine into the territory of the Constitutional Court of Ukraine, thus preventing judges of the Constitutional Court of Ukraine from entering their work places. They explained the ban on the entry of official cars by “holding events” upon the instructions of their administration.
On December 30, 2020, January 19, 20, 21, 22, 25, 26, and 27, 2021, UDO employees also committed illegal actions against me as the Chairman of the Constitutional Court of Ukraine regarding the non-admission to the administrative building of the Constitutional Court of Ukraine. On January 22, 2021, UDO employees also prevented me from entering the territory of the Constitutional Court of Ukraine to participate in the official ceremony of raising the State Flag of Ukraine in honour of the Day of Unity of Ukraine.
At the same time, the UDO staff did not present any official documents that would justify prohibiting the Chairman of the Constitutional Court of Ukraine and judges of the Constitutional Court of Ukraine from entering the administrative building of the Constitutional Court of Ukraine, but only referred to the oral “order” of their administration, issued in order to implement the Decree.
To my repeated questions about what caused such a “strengthening” of security and on what grounds I was not allowed to enter my office, the Head of the Service unit of the 6th Commandant's Office of the UDO, which provides guardance to the Constitutional Court of Ukraine, O.I. Krapyva replied that he had no personal claims against me personally, but there was an oral “order” from the UDO administration not to allow me into the administrative building of the Constitutional Court of Ukraine.
Thus, the provisions of the Constitution and laws of Ukraine on the legal basis of state power in Ukraine, guarantees of independence and inviolability of judges of the Constitutional Court of Ukraine, in particular the requirement of Article 19.2 of the Constitution of Ukraine, according to which public authorities and their officials are obliged to act only on the basis, within the powers and in the manner provided by the Constitution and laws of Ukraine, were grossly violated.
It should be noted that the principles of the activity of UDO are regulated by the Law of Ukraine “On State Protection of Public Authorities of Ukraine and Officials” (hereinafter referred to as “the Law”). This Law defines the main principle of state protection provided by UDO to be the principle of legality, and the purpose of state protection is to ensure the proper functioning of public authorities of Ukraine, security of officials and relevant objects.
The Law defines the tasks assigned to UDO: the implementation of state protection in relation to public authorities of Ukraine; ensuring the security of relevant officials at their place of stay both on the territory of Ukraine and abroad; ensuring the safety of family members of officials specified by this law who live with them or accompany them; prevention of illegal encroachment on officials and members of their families and objects in respect of whom state protection is carried out, their detection and termination; protection of objects defined by law; ensuring the safe operation of vehicles intended for officials specified by this law; participation in measures aimed at combating terrorism.
It is obvious that the above-mentioned actions of UDO employees had nothing to do with the legislatively defined principles and purpose of their activities, and were not aimed at fulfilling the tasks provided for them by law.
Instead, UDO employees resorted to illegal obstruction to the service activities of judges of the Constitutional Court of Ukraine, including my service activities as a judge and the Chairman of the Constitutional Court of Ukraine, as well as blocking the activities of the Constitutional Court of Ukraine as a public authority on the basis of an illegal "order" of the UDO administration. It should be emphasised that according to Article 62 of the Constitution of Ukraine, no one is obliged to carry out manifestly criminal orders or instructions, and the issuance and execution of a manifestly criminal order or instruction leads to legal responsibility.
Such actions of UDO employees have signs of a number of crimes related to abuse of office, obstruction of the activities of a statesman, interference in the activities of a judicial body, seizure of buildings providing the activities of public authorities in order to interfere with the normal functioning of institutions.
I myself and other judges of the Constitutional Court of Ukraine submitted to the Prosecutor's Office statements (notifications) about the commission of these crimes by UDO employees. In addition, I sent an appeal to the Security Service of Ukraine regarding the illegality of the use of the special UDO unit “Bulat” in order to block the work of the Constitutional Court of Ukraine.
The special danger of such actions of UDO employees is that there are no guarantees that for the sake of carrying out the “order” of their administration, they will not in the same way block the activities of any higher body of state power of Ukraine, preventing their representatives from entering the office premises to perform their duties: People's Deputies of Ukraine - to the premises of the Verkhovna Rada of Ukraine; government officials - to the premises of the Cabinet of Ministers of Ukraine and ministries; members of the Central Election Commission - to those of the Central Election Commission; judges of the Supreme Court - to those of the Supreme Court; the President of Ukraine - to those of the Office of the President of Ukraine.
Current events indicate that there is a real risk that the blocking scenario currently being implemented against the Constitutional Court of Ukraine, its judges and the Chairman, may be applied to other state bodies and statesmen. This can lead to the usurpation of state power, illegal change of the constitutional order, the formation of a police state and the establishment of a dictatorship.
According to the Law, UDO is a state law enforcement body of special purpose, subordinated to the President of Ukraine and controlled by the Verkhovna Rada of Ukraine. The UDO Head and his deputies are appointed and dismissed by the President of Ukraine.
On January 21, 2021, I addressed the President of Ukraine V. Zelenskyi as a guarantor of observance of the Constitution of Ukraine, human and civil rights and freedoms, as well as the official to whom UDO is subordinated, and I ask to immediately apply measures to unblock the work of the Constitutional Court of Ukraine and remove the obstacles unlawfully created by UDO staff for judges of the Constitutional Court of Ukraine to exercise their powers; bring to liability established by law (in particular, dismissal from office) the heads and other employees of UDO involved in blocking the work of the Constitutional Court of Ukraine and preventing judges and the Chairman of the Constitutional Court of Ukraine from exercising their official powers; ensure the implementation of the principle of legality in the activities of UDO in order to prevent the future use of this paramilitary organisation to achieve illegal goals.
Given the extreme importance of this issue in order to ensure the constitutional order and national security of Ukraine, I also requested the President of Ukraine to convene an urgent sitting of the National Security and Defense Council of Ukraine to consider it.
In accordance with Article 25 of the Law, the Verkhovna Rada of Ukraine monitors compliance with the current legislation in the field of state guardance, ensuring human rights and freedoms. The exercise of democratic civilian control over the UDO by the Verkhovna Rada of Ukraine is also provided for in Article 6 of the Law of Ukraine “On National Security of Ukraine”.
In view of the above and guided by Articles 1, 5, 6, 19, 85, 147, 148, 149 and 153 of the Constitution of Ukraine, Articles 1, 2, 18, 24, 25 and 33 of the Law of Ukraine “On the Constitutional Court Of Ukraine”, Articles 1, 2, 3, 11, 12 and 25 of the Law of Ukraine “On State Protection of Public Authorities of Ukraine and Officials”, Article 6 of the Law of Ukraine “On National Security of Ukraine”, I request the Verkhovna Rada of Ukraine to:
1. Immediately consider the procedure of parliamentary control over the situation that has arisen in connection with illegal interference in the activities of the Constitutional Court of Ukraine, blocking its work, unlawful influence on judges of the Constitutional Court of Ukraine and obstruction of their duties.
2. Take appropriate measures to remedy this situation and prevent the future use of UDO to achieve illegal goals.
I also request you to share the text of this address with the leaders of parliamentary factions and parliamentary groups.
Sincerely,
Chairman
of the Constitutional Court of Ukraine (signed) O. Tupytskyi
January 27, 2021
